Alabama Advisory Opinions January 23, 1980: AGO 80-00165 (January 23, 1980)

Advisory Opinion Text

Lee L. Hale Deputy Attorney General

Walter B. Turner Chief Assistant Attorney General

William M. Bekurs, Jr. Executive Assistant

Janie Nobles Administrative Assistant

Members, State Ethics Commission

c/o Honorable Melvin G. Cooper

Executive Director

State Ethics Commission

312 Montgomery Street

Montgomery, Alabama 36104

Ethics Commission-Officers and Employees-Political Activities

State employee political activities prohibition discussed.

Dear Mr. Cooper:

I have received and considered your decent letter which stated as follows:

"Title 36-25-3(e), Code of Alabama 1975 (the Ethics law), provides in pertinent part that 'All members, officers, agents, attorneys and employees of the commission shall be subject... to the provisions of law prohibiting political activities by state employees.' In this connection, the Commission members respectfully request an opinion as to the extent they may be permitted to participate in national, State and local elections."

The provision of law prohibiting political activities by state employees referred to in the Ethics Law is Section 36-26-38, Code of Alabama 1975 , which provides as follows:

"§ 36-26-38. Political activities prohibited . (a) No person shall be appointed or promoted to or demoted or dismissed from any position in the classified service or in any way favored or discriminated against with respect to employment in the classified service because of his political or religious opinions or affiliations. No person shall seek or attempt to use any political endorsement in connection with any appointment to a position in the classified service. "No person shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in' appointment to a position in the classified service or an increase in pay or other advantage in employment in any such position for the purpose of influencing the vote or political action of any person or for any consideration. No employee in the classified service and no member of the board shall directly or indirectly, pay or promise to pay any assessment, subscription or contribution for any political organization or purpose or solicit or take any part in soliciting any such assessment, subscription or contribution. No person shall solicit any such assessment, subscription or contribution of an employee in the classified service. No employee in the classified service shall be a member of any national, state or local committee of a political party or an officer of a partisan political club or a candidate for nomination or election to any public office or shall take any part in the management or affairs of any political party or in any political Campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote; provided, however, that nothing in this section shall prohibit any person in the classified service from serving out the term of a party office for which he had been elected at the time this chapter goes into effect.

"(b) Any officer or employee in the classified service who violates any of the foregoing provisions of this section shall forfeit his office or position."

This section of our law is very similar to the Federal Hatch Act and to similar provisions in many other states. The constitutionality of the Federal Hatch Act was upheld in United States Civil Service Commission v. National Association of Letter Carriers , 413 U.S. 548, 37 L.Ed.2d 796, 93 S.Ct. 2880 (1973). and the constitutionality of the Oklahoma statute, the statute almost word for word the same as our statute, was upheld in Broadrick v. . Oklahoma , 413 U.S. 601, 37 L.Ed.2d 830, 93 S.Ct. 2908 (1973). In upholding the constitutionality of these statutes, however, the United States Supreme Court did suggest that public employees had some undefined freedom of speech right which could not be abridged by such laws. For example, the Supreme Court said that such laws should" not be read so strictly as to prohibit a public employee from expressing a political preference to friends and associates in everyday conversations and discussions. The Court left open the question of whether such laws could prohibit public employees from wearing buttons and placing bumper stickers on their cars although the Court's opinion would suggest that public employees could do these things and could not constitutionally be prohibited from so doing.

Our law does clearly prohibit a state employee from making financial contributions to political candidates or political parties and from being a member of a political party committee or officer of a partisan political club. Until recently amended, our law also clearly prohibited state employees from holding any elective office and from participating in any political campaign.

However, following the trend established by the federal government in liberalizing its personnel law to more fully recognize public"employees' civil rights, the Alabama Legislature has modified our law by the enactment of Act No. 819 of the 1978 Regular Session, now codified as Section 17-1-7, Code of Alabama 1975 . That section -pro-

"§ 17-1-7. Right of city, county and state employees to participate in political activities; improper use of position to influence vote or political action. (a)(1) No person in the employment of any city, whether classified or unclassified/ shall be denied the " "right to participate in county and state political activities to the same extent as any other citizen of the state of Alabama, including endorsing candidates and contributing to campaigns of his choosing.

"(2) No person in the employment of any county, whether classified or unclassified, shall be denied the right to participate in city and state political activities to the same extent as any other citizen of the state of Alabama, including endorsing candidates and contributing to campaigns of his choosing.

"(3) No person in the employment of the state of Alabama, whether classified or unclassified, shall be denied the right to participate in city or county political activities to the same extent as any other citizen of the state of Alabama, including endorsing candidates and contributing to campaigns of his choosing.

"(4) All persons in the employment of any city or county shall have the right to join local political clubs and organizations, and state or national political parties.

"(5) All persons in the employment of any city or county shall have the right to publicly support issues of public welfare, 'circulate petitions calling for or in support of referendums, and contribute freely to those of his choosing.

"(6) No person shall attempt to use his official authority or position for the purpose of influencing the vote or - -political action of any person. Any person who violates this subsection (b) shall be guilty of a felony and punishable by a fine not to exceed §10,000-00 or imprisonment in the state penitentiary for a period not to exceed two years, or both."

As suggested above the enactment of such legislation requires a balancing of the public employee's personal rights to freedom of speech, freedom of association and, more specifically, to participate in the political process, against the need to protect those same employees from political pressure and to prevent political considerations from affecting and disrupting the daily operations of government services. In balancing these considerations the Legislature apparently concluded that the greatest danger of political disruption existed when public employees sought to participate in the political process at the same level of government at which they were employed. With respect to other levels of government, the Legislature apparently concluded that the individual's personal rights were greater than the danger involved in permitting political participation. Following this logic it would seem that public employees at the state level should also be permitted to participate in political affairs on the national level. However, Section 17-1-7 only addresses the right of state employees to participate in city or county political activities and does not mention national political activities. Similarly, Section 17-1-7 provides for city and county employee participation in political activities at the city, county and state levels of government but does not address such participation in national political activities.

There seems to be no logical reason for permitting city employees to participate in political activities at the county and state level but not at the national level. There seems to be no logical reason for permitting county employees to participate in political activities at the city and state level, but not at the national level. Similarly, there' seems to be no logical reason for "permitting state-employees to participate in political activities at the city and county level but not at the national level. Consequently, it is my opinion that the intent and the effect of Section 17-1-7 is to limit the proscription against participation in political-activities by public employees to activities relating to the same level of government at which the employee is employed and to permit public employees the same political rights that other citizens have with respect to other levels of government. Thus, state employees may participate in political affairs at the national level provided, of course, that such participation does not occur during the employee's work hours or otherwise disrupt or interfere with the performance of his public duties and that public equipment or materials are not used.

Public employees are still protected from any political pressure which might be exerted On them by their superiors by the remaining provisions of Section 36-26-38 and by the provisions of Section 17-1-7 and by Sections 17-23-3, 17-23-10 and 17-23-11 all of which prohibit persons from coercing, intimidating or threatening employees for the purpose of influencing their political action. This newly permitted public employee political activity casts renewed importance and emphasis upon these prohibitions.

I hope and trust that this sufficiently answers your questions.

Sincerely,

CHARLES A. GRADDICK Attorney General By

WILLIAM T. STEPHENS Assistant Attorney General